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Copyright infringement
United States Civil liability Anyone who, without the authorization of the copyright owner, exercises any of the exclusive rights of a copyright owner, as granted and limited by the Copyright Act, is an infringer of copyright.See 17 U.S.C. §501(a). Anyone who "trespasses into [[copyright owner]'s] exclusive domain by using or authorizing the use of the copyrighted work in one of the five ways set forth in the statute" is an infringer of the copyright. Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 433 (1984). Thus, any activity that falls within the scope of the exclusive rights of the copyright owner is a copyright infringement and the infringer is liable, unless it is authorized by the copyright owner or is excused by a defense (such as fair use) or an exemption. For instance, activities such as loading a work into a computer, scanning a printed work into a digital file, uploading or downloading a work between a user's computer and a website or other server, and transmitting a work from one computer to another may be infringements (in those cases, of the reproduction right). See, e.g., MAI Sys. Corp. v. Peak Computer, Inc., 991 F.2d 511 (9th Cir. 1993) (the turning on of the computer, thereby causing the operating system to be copied into random access memory RAM, constituted an infringing reproduction of the copyrighted software); Advanced Computer Servs. v. MAI Sys. Corp., 845 F. Supp. 356 (E.D. Va. 1994) (loading software into computer's RAM constituted infringing reproduction); see also 2 Melville Nimmer & David Nimmer, Nimmer on Copyright §8.08 at 8-103 ("input of a work into a computer results in the making of a copy, and hence . . . such unauthorized input infringes the copyright owner's reproduction right"). For purposes of this discussion of infringement, the lack of such authorization, defense or exemption is generally presumed. Copyright infringement is determined without regard to the intent or the state of mind of the infringer; "innocent" infringement is infringement nonetheless.The innocence or willfulness of the infringing activity may be relevant with regard to the award of statutory damages. See 17 U.S.C. §504©. Moreover, although the exclusive rights refer to such rights with respect to "copies" (plural) of the work,See id. §106. there is no question that under the Act the making of even a single unauthorized copy may constitute an infringement.See H.R. Rep. 94-1476,, at 61, reprinted in 1976 U.S.C.C.A.N. 5674 ("references to 'copies or phonorecords' are intended Section 106(1)-(3) and throughout the bill to include the singular"; "the right 'to reproduce the copyright work in copies or phonorecords' means the right to produce a material object in which the work is duplicated, transcribed, imitated, or simulated . . . "). Further evidence of the intent of Congress to make even a single act of unauthorized reproduction an infringement is found in specific exemptions created for certain single copy uses. See, e.g., 17 U.S.C. §§108(a), 108(f)(2), 112(a). Courts generally use the term "copying" as shorthand for a violation of any of the exclusive rights of the copyright owner (not just the reproduction right). Courts usually require a copyright owner to prove ownership of the copyrighted work and "copying" by the defendant to prevail in an infringement action. Since there is seldom direct evidence of copying (witnesses who actually saw the defendant copy the work, for instance), a copyright owner may prove copying through circumstantial evidence establishing that the defendant had access to the original work and that the two works are substantially similar. Other indications of copying, such as the existence of common errors, have also been accepted as evidence of infringement.See, e.g., Rockford Map Publishers, Inc. v. Directory Serv. Co., 224 U.S.P.Q. (BNA) 851 (C.D. Ill. 1984), aff'd, 768 F.2d 145 (7th Cir. 1985), cert. denied, 474 U.S. 1061 (1986); Sub-Contractors Register, Inc. v. McGovern's Contractors & Builders Manual, Inc., 69 F. Supp. 507, 509 (S.D.N.Y. 1946). It is common for publishers of directories and other compilations to deliberately insert mistakes into the work (such as periodically adding a fictitious name, address and phone number in a telephone directory) to detect and help establish copying. See 2 H. Abrams, The Law of Copyright §14.02B3c, at 14-19 to 14-20 (1993). The copying of the copyrighted work must be copying of protected expression and not just ideas; This should be implied in the requirement that there be copying of the copyrighted work. ideas and facts, of course, are not copyrightable. In the case of compilations, such as databases, if enough fact]s are copied, the copyrighted expression (the selection, arrangement or coordination of the facts) may be copied and infringement may be found. See CONTU Final Report, at 42 ("The use of one item retrieved from such a work — be it an address, a chemical formula, or a citation to an article — would not . . . conceivably constitute infringement of copyright. The retrieval and reduplication of any substantial portion of a [base, whether or not the individual data are in the public domain, would likely constitute a duplication of the copyrighted element of a data base and would be an infringement."). likewise, the similarity between the two works must be similarity of protected elements (the expression), not unprotected elements (the facts, ideas, etc.). The portion taken must also be more than de minimis. The similarity between the two works need not be literal (i.e., phrases, sentences or paragraphs need not be copied verbatim); substantial similarity may be found even if none of the words or brush strokes or musical notes are identical.See Donald v. Zack Meyer's T.V. Sales & Serv., 426 F.2d 1027, 1030 (5th Cir. 1970) ("paraphrasing is equivalent to outright copying"), cert. denied, 400 U.S. 992 (1971); Davis v. E.I. DuPont de Nemours & Co., 240 F. Supp. 612, 621 (S.D.N.Y. 1965) ("paraphrasing is tantamount to copying in copyright law"); see generally 3 Melville Nimmer & David Nimmer, Nimmer on Copyright §13.03A at 13-28 to 13-58. Nimmer identifies two bases upon which courts impose liability for less than 100 percent verbatim copying: (1) "fragmented literal similarity" (where words, lines or paragraphs are copied virtually word-for-word, although not necessarily verbatim) and (2) "comprehensive nonliteral similarity" (where the "fundamental essence or structure" of a work is copied); see also P. Goldstein, Copyright §7.2.1 at 13-17. Goldstein identifies three types of similarity: (1) where the infringing work "tracks" the original work "in every detail," (2) "striking similarity" (where a brief portion of both works is "so idiosyncratic in its treatment as to preclude coincidence") and (3) similarities that "lie beneath the surface" of the works ("incident and characterization in literature, composition and form in art, and rhythm, harmony and musical phrases in musical composition"). Id. at 13 (citations omitted). Various tests have been developed to determine whether there has been sufficient non-literal copying to constitute substantial similarity between a copyrighted work and an allegedly infringing work. For analyses of the various tests that have been used, see 3 Melville Nimmer & David Nimmer, Nimmer on Copyright §13.03A at 13-28 to 13-58; M. Leaffer, Understanding Copyright Law §§9.5-9.7 at 268-76. Abstractions test Judge Learned Hand articulated the well-known "abstractions test," where the expression and the idea are, in essence, treated as ends of a continuum, with infringement found if the allegedly infringing work crosses the line delineating the two.See Nichols v. Universal Pictures, Corp., 45 F.2d 119, 121 (2d Cir. 1930). Such a line, as Judge Hand recognized, is not fixed in stone; indeed, as he put it, its location must "inevitably be ad hoc . . . ."See Peter Pan Fabrics Inc. v. Martin Weiner Corp., 274 F.2d 487 (2d Cir. 1960). Pattern test The "pattern test” has also been suggested, where infringement is found if the "pattern" of the work is taken (in a play, for instance, the "sequence of events, and the development of the interplay of characters").See Z. Chaffee, Reflections on the Law of Copyright: I, 45 Columbia L. Rev. 503, 513 (1945). Subtractive test The "subtractive test” — which dissects the copyrighted work, disregards the noncopyrightable elements, and compares only the copyrightable elements of the copyrighted work to the allegedly infringing work — has been the traditional method for determining substantial similarity.See Universal Athletic Sales Co. v. Salkeld, 511 F.2d 904, 908-09 (3d Cir.), cert. denied, 423 U.S. 863 (1975) (subtracting all but the "stick figures" from chart as non-protectible subject matter); Alexander v. Haley, 460 F. Supp 40, 46 (S.D.N.Y. 1978) (finding "alleged infringements display no similarity at all in terms of expression or language, but show at most some similarity of theme or setting. These items, the skeleton of creative work rather than the flesh, are not protected by the copyright laws."). Totality test Following the 1970 Ninth Circuit decision in Roth Greeting Cards v. United Card Co.,''429 F.2d 1106 (9th Cir. 1970). the "totality test” became popular for determining substantial similarity. The totality test compares works using a "total concept and feel" standard to determine whether they are substantially similar. Although chiefly used by the Ninth Circuit in the 1970s and 1980s, ''See, e.g., Sid & Marty Krofft Television Prods., Inc. v. McDonald's Corp., 562 F.2d 1157 (9th Cir. 1977); McCulloch v. Albert E. Price, Inc., 823 F.2d 316 (9th Cir. 1987). the test was used by other circuits as well.See, e.g., Reyher v. Children's Television Workshop, 533 F.2d 87 (2d Cir. 1976); Atari, Inc. v. North American Philips Consumer Elects Corp., 672 F.2d 607 (7th Cir.), cert. denied, 459 U.S. 880 (1982); Atari Games Corp. v. Oman, 888 F.2d 878 (D.C. Cir. 1989); Whelan Assocs., Inc. v. Jaslow Dental Lab., Inc., 797 F.2d 1222 (3d Cir. 1986), cert. denied, 479 U.S. 877 (1987). Extrinsic/intrinsic test The Ninth Circuit further defined an "extrinsic/intrinsic test” in proof of substantial similarity in Sid & Marty Krofft Television Productions, Inc. v. McDonald's Corp.''562 F.2d 1157 (9th Cir. 1977). The intrinsic portion of the test measures whether an observer "would find the total concept and feel of the works" to be substantially similar.''See Pasillas v. McDonald's Corp., 927 F.2d 440, 442 (9th Cir. 1991). The extrinsic portion of the test, meanwhile, is an objective analysis of similarity based on "specific criteria that can be listed and analyzed."See Brown Bag Software v. Symantec Corp., 960 F.2d 1465, 1475 (9th Cir. 1992). Thus, this test requires substantial similarity "not only of the general ideas but of the expressions of those ideas as well."Sid & Marty Krofft, at 1164. More recently, however, both the Ninth and Second Circuits have moved away from the totality test, particularly with respect to computer applications. In Data East USA, Inc. v. Epyx, Inc.,''862 F.2d 204 (9th Cir. 1988). the Ninth Circuit rediscovered "analytic dissection of similarities" in the substantial similarity determination of video games.''See also ''Apple Computer, Inc. v. Microsoft Corp., 35 F.3d 1435, 1445 (9th Cir. 1994) (approving of district court's use of analytical dissection and agreeing with other courts' use of the "same analysis although articulated differently"). Abstraction-filtration-comparison test Similarly, the Second Circuit, in ''Computer Associates International, Inc. v. Altai, Inc.,''982 F.2d 693 (2d Cir. 1992). See Autoskill Inc. v. National Educational Support Sys., Inc., 994 F.2d 1476, 1490-91 (10th Cir. 1993). fashioned an "abstraction-filtration-comparison test" for a computer program that combined Judge Learned Hand's "abstraction test” (to separate ideas from expression) and "filtration" reminiscent of traditional "subtraction" analysis in distinguishing protectible from non-protectible material. Other circuits have applied this test. ''See Engineering Dynamics, Inc. v. Structural Software, Inc., 26 F.3d 1335, 1343 (5th Cir. 1994); Gates Rubber Co. v. Bando Chem. Indus., Ltd., 9 F.3d 823, 834 (10th Cir. 1993). Ordinary observer test In addition to the evolution of substantial similarity tests, there is disagreement as to the appropriate "audience" for determining substantial similarity. The "ordinary observer test" — alluded to in Arnstein v. Porter''154 F.2d 464 (2d Cir. 1946). and followed in a number of Second Circuit decisions''See, e.g., Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487 (2d Cir. 1960); Ideal Toy Corp. v. Fab-Lu Ltd., 360 F.2d 1021 (2d Cir. 1966); Eden Toys, Inc. v. Marshall Field & Co., 675 F.2d 498 (2d Cir. 1982). — considers the question of substantial similarity from the viewpoint of the "average lay observer." The Fourth Circuit, however, set forth a modified test in Dawson v. Hinshaw Music Inc.,''905 F.2d 731 (4th Cir. 1990). requiring the ordinary observer to be the "intended" audience for the particular work. Relying on decisions by both the Ninth and Seventh Circuits,''See Aliotti v. R. Dakin & Co., 831 F.2d 898, 902 (9th Cir. 1987) (holding that perceptions of children must be considered in substantial similarity analysis because they are intended market for product); Atari, Inc. v. North American Philips Consumer Elecs. Corp., 672 F.2d 607, 619 (7th Cir.), cert. denied, 459 U.S. 880 (1982) (holding that "[[video games,]] unlike an artist's painting, . . . appeal to an audience that is fairly undiscriminating insofar as their concern about more subtle differences in artistic expression"). the court in Dawson stated: :if the lay public fairly represents the intended audience, the court should apply the lay observer formulation of the ordinary observer test. However, if the intended audience is more narrow in that it possesses specialized expertise, . . . the court's inquiry should focus on whether a member of the intended audience would find the two works to be substantially similar.Dawson, at 736. The challenge of this test, especially in more advanced technologies, is determining when, if ever, a work is not directed to an audience possessing specialized expertise, and at what point a work once intended for a specialized audience becomes accepted by the general public. The ability to manipulate works in digital form raises an issue with respect to infringement of the reproduction and derivative works rights. A copyrighted photograph, for instance, can be manipulated in the user's computer in such a way that the resulting work is not substantially similar to the copyrighted work (in fact, it may bear little or no resemblance to the copyrighted work upon which it was based). The initial input of the copyrighted work into the user's computer may be an infringement of the copyright owner's reproduction right, but the infringing (or noninfringing) nature of the resulting work is less clear. Although courts traditionally rely on a "substantial similarity" test to determine infringement liability — including with regard to the derivative works right — neither the meaning of "derivative work" nor the statutory standard for infringement appears to require an infringing derivative work to be substantially similar. An infringer is anyone who violates "any of the exclusive rights" of the copyright owner. 17 U.S.C. §501(a). One of the exclusive rights is the right "to prepare derivative works based upon the copyrighted work." 17 U.S.C. §106(2). The Ninth Circuit has suggested that "a work is not derivative unless it has been substantially copied from the prior work." See Litchfield v. Spielberg, 736 F.2d 1352, 1357 (9th Cir. 1984) (emphasis added). It is unclear, however, whether the court is suggesting that a derivative work must be substantially similar to the prior work or that it simply must incorporate in some form a portion of the prior work, as noted in the legislative history. See H.R. Rep. 94-1476,, at 62, reprinted in 1976 U.S.C.C.A.N. 5675. The court noted that there is "little available authority" on infringement of the derivative works right. See Litchfield, at 1357. Criminal liability Not every infringement is a criminal offense. Criminal copyright penalties have always been the exception rather than the rule. Although criminal copyright law has greatly expanded the scope of the conduct it penalizes over the past century, criminal sanctions continue to apply only to certain types of infringement — generally when the infringement is particularly serious, the infringer knows the infringement is wrong, or the type of case renders civil enforcement by individual copyright owners especially difficult. Copyright infringement is a crime if the defendant acted willfully and either (1) for commercial advantage or private financial gain, (2) by reproducing or distributing infringing copies of works with a total retail value of over $1,000 over a 180-day period, or (3) by distributing a "work being prepared for commercial distribution" by making it available on a publicly-accessible computer network.17 U.S.C. §506(a)(1). Copyright infringement is a felony only if the infringement involved reproduction or distribution of at least 10 copies of copyrighted works worth more than $2,500 in a 180-day period, or involved distribution of a "work being prepared for commercial distribution" over a publicly-accessible computer network.See id.; 18 U.S.C. §2319. There are three essential copyright crimes: # Willful infringement "for purposes of commercial advantage or private financial gain";17 U.S.C. §506(a)(1)(A) (formerly §506(a)(1), before the Family Entertainment and Copyright Act of 2005, Pub. L. No. 109-9 § 103, 119 Stat 218, 220-21 (Apr. 27, 2005) amendments). # Willful infringement not for profit, but with "the reproduction or distribution, including by electronic means, during any 180-day period, of 1 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of more than $1,000";17 U.S.C. §506(a)(1)(B) (formerly §506(a)(2) before the Apr. 27, 2005 amendments). and # Pre-release piracy, i.e., willful infringement "by the distribution of a work being prepared for commercial distribution, by making it available on a computer network accessible to members of the public, if such person knew or should have known that the work was intended for commercial distribution."17 U.S.C. §506(a)(1)© (newly enacted with the Apr. 27, 2005 amendments). The common factors are that (1) there must be a copyright, (2) there must be an infringement, and (3) the infringement must be willful. Some courts also require that the government prove an extra element, that the infringing items at issue were not permissible "first sales,"]] but other courts hold first sale to be an defense]. Determining the elements to prove a felony (versus a misdemeanor) is slightly more involved. For-profit infringement,17 U.S.C. §506(a)(1)(A). is a five-year felony if: *The defendant infringed by means of "the reproduction or distribution, including by electronic means," AND *"during any 180-day period, of at least 10 copies or phonorecords, of 1 or more copyrighted works, which have a total retail value of more than $2,500."18 U.S.C. § 2319(b)(1). *Otherwise — if the offense violated rights other than reproduction or distribution or the offense did not satisfy the monetary or numerical thresholds — it is a misdemeanor.Id. §2319(b)(3). Non-profit infringement,17 U.S.C. §506(a)(1)(B). is a three-year felony if: *The defendant infringed by means of "the reproduction or distribution of 10 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of $2,500 or more."18 U.S.C. §2319©(1). *Otherwise — if the offense did not satisfy the monetary and numerical thresholds — it is a misdemeanor.Id. §2319©(3). Pre-release infringement over a publicly-accessible computer network,17 U.S.C. §506(a)(1)©. is always a felony, but the penalties increase if it is done for commercial advantage or private financial gain.18 U.S.C. §2319(d)(1),(2). In other words, there are four essential elements to a charge of felony copyright infringement: # A copyright exists. # The defendant acted willfully. # It was infringed by the defendant by reproduction or distribution of the copyrighted work, or (for violations of 17 U.S.C. §506(a)(1)©), by distribution. # The infringement consisted of either of the following: :(a) the defendant infringed at least 10 copies of one or more copyrighted works with a total retail value of more than $2,500 within a 180-day period; OR :(b) the defendant infringed by ::(i) the distribution ::(ii) by making available on a computer network accessible to members of the public ::(iii) of a "work being prepared for commercial distribution" ::(iv) the defendant knew or should have known the work was being prepared for commercial distribution. Repeat felonies garner increased penalties.See 18 U.S.C. §2319(b)(2), ©(2), (d)(3)-(4). Amendments to the criminal copyright statutes in 1997 and 2005 significantly changed the elements of felony copyright infringement.See No Electronic Theft Act (NET) Act, Pub. L. No. 105-147, 111 Stat. 2678 (1997); Family Entertainment and Copyright Act of 2005 (FECA), Pub. L. No. 109-9 § 103, 119 Stat. 218, 220-21 (2005).Cases predating these statutes should not necessarily be relied upon for delineating the elements of current copyright offenses, but they remain useful in interpreting the current law's elements. References See also Copyright law Category:Copyright